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after the conveyance to B. If the decision be correct, on the existing facts, it must have been the same, though A had refused to convey the house.
In Pennsylvania, a promissory note given in consideration of withdrawing a suit for slander, was held to be valid, though the words, charged as slanderous, were not actionable."
SLIGHT DAMAGE, &c. To THE PROMISEE.
A promise to pay a sum of money, if the promisee will procure an order from a third person, directing the payment, is binding, if the condition is performed.” So of a promise to pay rent in arrear to an assignee of a leasehold estate, if a deed be shown proving that the rent is due.” So of a promise to pay the bond of a third person, if the obligee will go before a magistrate and make oath that it was rightly read to the obligor before he executed it. “The travail of coming before the mayor is a very good consideration.” “ In the cases cited in the margin,” proof of a debt, in various agreed modes, was held to be a sufficient consideration for a promise to pay. “For it is a charge to the plaintiff.” So of an undertaking to endeavor to perform an act at another's request;" and of a promise to indemnify, if the plaintiff will enter into land of a third person which the defendant claims as his own.” So of a promise to pay a certain sum of money if the plaintiff will call for it at a particular time, and he call accordingly; the calling for the money being an inconvenience to the plaintiff."
* 2 Pennsylv. 531. * 2 Went. 71, 74. * Cro. Eliz. 67. * Cro. Eliz. 469; S. P. 18 Johns. 337, Brooks v. Ball; 2. Sid. 123, Perkins v. Binke. But see 1 Freem. 133, and 1 Mod. 166, where Vaughan, C. J. denied that extrajudicial oaths were lawful, or of any legal effect, and said they were punishable by setting the party in the stocks, under the statute of James I. against profane swearing. • 1 sid. 57.283.369; T. Ray. 32, 153; 7 Mod. 13; 1 Freem. 53. • Hob. 105; T. Ray. 400. 72 Johns. Cas. 52.
Benefit To A Third Person. At the instance of The Proviisor.
All sureties for the debts, or performance of duties, covenants, &c. of others, come under this head. The surety, by legal intendment, requests that the principal may be accommodated with a loan, or may have credit at another's shop, &c. The consideration of his undertaking is the benefit received by the principal, at his request, express or implied. Guaranties, and all other forms of collateral obligation assumed for others, come within the same principle.”
In Minet's case” lord Eldon said “the undertaking of one man for the debt of another does not require any consideration moving between them.” And undoubtedly it is not necessary, in order to hold a surety, that there should be any consideration, as between him and the principal. Any person may promise as surety, without the principal's knowledge; and if there be a consideration for the promise, it will be binding. Otherwise he will not be bound, though he promise at the express request of the principal.
Where the whole is one agreement, where the principal and surety, or guarantor, unite, at the same time, in making a promise, that agreement is obligatory on the surety, or guarantor; and the consideration for that agreement attaches to him as well as to the principal. Principal and surety, in such case, are joint contractors, and the benefit to the principal, or the damage, &c. to the promisee, is the consideration which supports the contract of both promisors."
* Per Wilde, J. 5 Pick. 384.
* See Gouldsb. 94, Brown v. Garbrey; Cro. Eliz.137, Kirkby r. Coles; 9 East, 348, Stadt v. Lill; 8 Johns. 29, Leonard v. Wredenburgh; 5 Mass. 362, Hunt. v. Adams.
* 14 Wes. 189.
* See Tenney v. Prince, 4 Pick. 385.
When a promise is made to pay the already existing debt of another, there must be some new consideration, or the promise will be void. The original consideration, which supports the principal's contract, cannot be made to operate on the new promise. Such promise is nudum pactum."
Forbearance to sue, or surceasing a suit, or suspending a right, is a sufficient consideration.” Thus where an obligor had commenced proceedings in chancery, on the ground that he had paid the bond which still remained in the obligee's hands, a promise by the latter to give up the bond, in consideration that the obligor would desist from his suit in chancery, was held to be valid.” An agreement to forbear, for a certain or reasonable time, to sue, or adopt legal proceedings, for a legal cause of action, at the request of the party liable, is a sufficient consideration to support a promise.” So of a promise to surcease a suit at law." Forbearance to sue, &c. is a good consideration for the promise of a third person, as well as of the person liable to suit." In some of the cases, just cited, the forbearance was given by an assignee of a debt, who could not have sued in his own name; and the consideration was held to be sufficient. It was held, in older cases, that the consideration was not sufficient, in such cases, unless the assignee had a letter of attorney to sue and release." By the modern decisions in England, a promise by an executor or administrator, in consideration of forbearance to sue, is upon sufficient consideration, and will bind him personally, though he has not assets.” The principle, on which this class of cases rests, seems to be this, viz.: that as the creditor may maintain an action, and have judgment to recover quando bona acciderint, though there be no present assets, the forbearance is a benefit to the administrator, &c. sufficient to support his promise. In Moore, 854, it is said that the executor’s “promise implies assets.” This, however, cannot be the true ground of these decisions; for a mere promise to pay, without any new consideration, is void, if there be no assets. And yet the promise implies assets, in this instance, as much as in the other.” The usual consideration of the guaranty of a note or other engagement, when undertaken after the note, &c. is made, is the forbearance extended to the original promisor. And (as before stated) unless there be some new consideration, such undertaking is nudum pactum." The cases already cited, and many others, show that not only forbearance to sue, but also forbearing to insist upon payment when it would be made without suit, if demanded, forbearing to levy an execution, or to take out or execute other process, is a good consideration for a promise, either by the party to whom the forbearance &c. is given, or by a third person.' So of withdrawing objections to the probate of a will,” and forbearing to protest a bill of exchange drawn on the party promising.” Lord Mansfield and Ashhurst, J. are reported" to have held that a promise by a judgment debtor to pay debt and cost, in consideration of a stay of execution, was not sufficient to support an action; as it was turning a judgment debt into a debt upon simple contract. This was an extrajudicial opinion, and contrary to an adjudged case" in the reign of Elizabeth. In the case of Tanner v. Hague, also,” a defendant was discharged from execution on his undertaking to pay the debt on a future day, and counsel admitted that there was a remedy on the new promise. It was affirmed by Jackson, J." that if an obligor, on being called upon to pay his bond, should promise to pay at a future day, assumpsit would not lie on this promise. The contrary, however, was adjudged, in the case of Ashbrook v. Snipe." And if the promise, in such case, were made in consideration of forbearance expressly given, the foregoing cases leave no room to doubt that such promise is a good ground of action. So if the promise were made on condition that the obligee should make oath that the sum secured by the bond is due, or should call again upon the obligor for payment, and the obligee had performed the condition. Forbearance, it is said, must be for a certain time, or for a reasonable time. The weight of authority is, that forbearance per breve or paululum tempus, is not a consideration of any value in law; for a suit may be immediately
* Packard v. Richardson, 17 Mass. R. 129; 1 Saund. 211 a. note; Thacher v. Dinsmore, 5 Mass. R. 301; Parker v. Carter, 4 Munf. 273; Bixler v. Ream, 3 Pennsylv. 282.
* 1 Saund. 211 b. note; Cro. Eliz. 387, May v. Alvares; Com. Dig. Assumpsit, B. 1, 2; 2 Bibb, 30.
* Cro. Eliz. 768, Dowdenay v. Oland; S. P. 2 Bulst. 41, Pooly v. Gilberd.
* 2 Saund. 137 d. note; Hob. 216, Bidwell v. Catton; Yelv. 1, Rippon v. Norton; Cro. Car. 272, Harris v. Richards; 4 Johns. 237, Elting v. Wanderlyn; Style, 264, King r. Weeden.
* 5 Mod.205, Stephens v. Squire; S. C. Comb. 362; 1 Wils. 305, Read v. Nash.
* Hardr. 71, Reynolds v. Prosser ; T. Ray. 211, Davison v. Hanslop; S.C. 2 Lev. 20; 1 Sid. 242, Quick v. Copleston; 6 M. & S. 204, Edwards v. Kelly; Wright, 434. 729.
* See 1 Rol. Abr. 20, pl. 11, 12; Hardr. 74, Reynolds v. Prosser, and Pet v. Bridgwater, there cited. * Yelv. 11, note (2); 1 Saund. 210, note (1); Hut. 108, Treford v. Holmes; Hetl. 62, Palmer's case; 1 Freem. 125, Porter v. Bille; 2 Saund. 137 c. note. * See 5 D. & E. 8, Pearson v. Henry; 7 D. & E. 350, note; 1 Freem. 409, Browne's case; 1 Wes. 126, by lord Hardwicke. * See 4 Greenleaf, 387, King v. Upton; 17 Mass. R. 129, Packard v. Richardson; 7 Mass. R. 233, Ulen v. Kittredge.
* Style, 395,440; Cro. Eliz. 848,868,909; Godb. 159, pl. 220; 1 Sid. 38; Hut. 63; 2 Keb. 200; 1 Salk. 28, Love's case; 10 Mass. R. 230, Lent v. Padelford, Yelv. 20, Jennings v. Hatley. See also Newsom's case, Clayt. 139.
* 5 Pick. 393, by Parker, C. J. * Style, 416, Pinchard v. Fowke. * Cowp. 128. * Tisdale's case, Cro. Eliz. 758. * 7 D. & E. 420. 7 14 Mass. R. 99. * Cro. Eliz. 240.
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